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Yam-Pech v. Holder

United States District Court, Tenth Circuit

January 16, 2014

ERICK HOLDER, JR., U.S. Attorney General, JOHN CARREY, Secretary of the United States Department of Homeland Security, JOHN MORTON, United States D.H.S. Director of ICE, JOHN LONGSHORE, Field Office Director U.S. ICE in Colorado, CHOATE, Warden of GEO CDF ICE Detention Center, JOHN SUTHERS, U.S. Attorney General for Colorado, and CORINA E. ALMEIDA, Chief Counsel for D.H.S.-ICE, Respondents.


WILLIAM J. MARTÍNEZ, District Judge.

This matter is before the Court on the Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 4), filed by Applicant, Roberto Yam-Pech, on October 31, 2013. Mr. Yam-Pech claims that he is not subject to the mandatory detention provisions of 8 U.S.C. § 1226(c) and requests an individualized hearing and bond determination by an immigration judge pending removal proceedings. He further asks the Court to declare his status "a national of the United States." (ECF No. 4, at 5). Respondents filed a Response (ECF No. 14) asserting that the Amended Application should be dismissed for lack of subject matter jurisdiction.[1] Mr. Yam-Pech filed a "Motion to Withdraw Petition for Habeas Corpus" (ECF No. 20) on January 6, 2014. However, because Applicant filed the motion after Respondents filed a response to the amended application, this action may be dismissed only by court order on terms that the Court deems proper. See Fed.R.Civ.P. 41(a)(2). For the reasons stated below, the Court finds that Applicant's request for an individualized bond hearing is moot. The Court further finds that it lacks jurisdiction to review the amount of bond set by the immigration judge, or to declare Mr. Yam-Pech's status as United States national. Accordingly, the Amended Application will be denied.


A. Habeas Corpus Application

An application for habeas corpus pursuant to 28 U.S.C. § 2241 may only be granted if the Applicant "is in custody in violation of the Constitution, or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Federal courts have habeas jurisdiction to examine the statutory and constitutional bases for an immigration detention unrelated to a final order of removal. Demore v. Kim, 538 U.S. 510, 517-18 (2003); see also Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004).

Mr. Yam-Pech is currently in the custody of immigration officials in Aurora, Colorado. "[F]or core habeas petitions challenging present physical confinement, jurisdiction lies only in one district: the district of confinement." Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004); see also United States v. Scott, 803 F.2d 1095, 1096 (10th Cir.1986) ("A § 2241 petition for a writ of habeas corpus must be addressed to the federal district court in the district where the prisoner is confined."). Because Applicant is detained within the District of Colorado, his § 2241 application was filed properly in this Court.

B. Pro Se Litigant

Applicant is proceeding pro se. The court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that an applicant can prove facts that have not been alleged, or that a respondent has violated laws in ways that an applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). An applicant's pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).


Mr. Yam-Pech is a native and citizen of Mexico. (ECF No. 14-1, at 2). He entered the United States without inspection some time prior to November 2006. ( Id. at 3). On November 14, 2006, he was granted a voluntary departure and left the United States. ( Id. at 3). Mr. Yam-Pech re-entered the United States without inspection in June 2007. ( Id. ). Applicant was convicted of a minor traffic offense in state court on July 2, 2008. ( Id. at 2). On the same date, he was contacted by immigration officers and placed in removal proceedings. ( Id. at 3; ECF No. 14-2). The immigration court granted bond, and Mr. Yam-Pech was released on July 29, 2008. (ECF No. 14-1, at 2). On February 6, 2009, Applicant was convicted of Driving Under the Influence and was sentenced to 20 days of incarceration. ( Id. at 4). Immigrations and Customs Enforcement (ICE) issued a detainer requesting notification of Mr. Yam-Pech's release, but Applicant was released without notice to ICE. ( Id. at 3-4). In the meantime, the immigration court administratively closed Mr. Yam-Pech's removal hearings pending his release from incarceration. ( Id. at 4). ICE lost track of Mr. Yam-Pech and his bond was cancelled on May 15, 2009. ( Id. ).

Mr. Yam-Pech was convicted of misdemeanors and traffic offenses on April 2, 2009 and May 15, 2009, but ICE did not become aware of his presence. ( Id. ). On August 13, 2013, Applicant was convicted in the County Court of Boulder County of Driving While Ability Impaired and was sentenced to work release and probation. (ECF ECF No. 14-1, at 4). ICE took Applicant into custody on August 14, 2013 and determined that he could be released on $29, 000 bond. ( Id. at 3; ECF No. 14-3). Applicant did not post bond and remained detained while his 2008 removal proceedings were re-calendared. On September 16, 2013, Mr. Yam-Pech requested that the immigration judge conduct a bond re-determination hearing (under 8 C.F.R. § 236.1(d)), and the hearing was held that day. The immigration judge ordered no change to the bond amount and Applicant waived appeal. (ECF No. 14-4). Mr. Yam-Pech filed the instant action on October 22, 2013. He was scheduled for another bond re-determination hearing on December 11, 2013. (ECF No. 14, at 3).


A. Applicant's Request for an Individualized Bond Hearing is Moot

Mr. Yam-Pech claims that he is not subject to the mandatory detention provisions of 8 U.S.C. § 1226(c) because immigration officials waited over six years after his conviction for the removable offense to detain him. (ECF No. 4, at 9). He therefore asks the Court to order Respondents to grant him an individualized bond hearing by an immigration judge pursuant to 8 U.S.C. § 1226(a). ( Id. at 5). Mr. Yam-Pech further contends that his detention without an ...

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